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TMI Blog2024 (8) TMI 719X X X X Extracts X X X X X X X X Extracts X X X X ..... a right which has been conferred by the statute. Any decision passed, would be appealable under Section 35 of the FEMA and that the legislature has conferred such right to a person aggrieved from any order or decision of the Appellate Tribunal, though with certain limitations. Taking note of Section 35G of the said Act, it would appear that an appeal shall lie to the High Court from every order passed in appeal by the Appellate Tribunal, though the maintainability thereof would be dependent on certain statutory limitations. Thus, it cannot be said that the order passed by the Tribunal on 5th January, 2024 does not qualify as an order for preferring an appeal before the High Court, simply because the same does not seek to adjudicate the rights of the parties. It is a different question whether the High Court would admit the same having regard to the substantial questions of law involved. There are limitations imposed by the statute which are required to be followed. Such statutory limitations, do not make an appealable order, non appealable, especially when there is no limitation on the nature of order or the decision to be appealed against, as in this case. The present writ petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imposed under Section 77 of the Finance Act, 1994 for failure to furnish information and produce documents requisitioned by the department; (iv) Penalty should not be imposed upon them under Section 78 of the Finance Act, 1994 for failure to pay the Service Tax by the due dates; and for suppression of vital facts from the department with intent to evade payment of Service Tax by various acts of omission and commission as explained in the preceding paragraphs; (v) Penalty should not be imposed under Section 70 and Section 77(2) of the Finance Act, 1994 for non-submission of return under provision of Section 70 of the Finance Act, 1994 read with Rule 7C of Service Tax Rules, 1994. 5. Although the petitioner no.1 had duly responded to the show cause, such proceeding was disposed of by passing the order in original by the respondent no.2 on 14th March, 2022, whereby, the demand raised in the show cause was confirmed in terms of Section 73(2) of the Central Excise Act, 1944 (hereinafter referred to as the said Act ), along with interest and penalty. 6. Being aggrieved, the petitioner no.1 had filed a writ petition before the Hon ble High Court at Guwahati, which was registered as WP(C) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner no.1 to make payment of the mandatory pre-deposit as is required for maintaining the appeal and this Court in exercise of its discretion is competent to grant such exemption. 13. Mr. Bhanja, learned advocate appearing on behalf of the respondents, on the other hand, while raising the point of territorial jurisdiction has argued that although, the Tribunal is situated within the jurisdiction of this Hon ble Court, yet by reasons of Section 35G of the said Act, an appeal would lie to the High Court, in this case, the Guwahati High Court. He further states that although the Tribunal was competent to dispense with the pre-deposit, prior to the amendment of Section 35F of the said Act, however, subsequent to the amendment of Section 35F of the said Act with effect from 6th August, 2014, the Tribunal is no longer competent to entertain an appeal unless the mandatory pre-deposit as is required to be paid in terms of Section 35F(i) of the said Act is deposited. 14. By drawing attention of this Court to the language used in Section 35F(i), it is submitted that the statute specifically provides that the Tribunal or the Commissioner (Appeals), as the case may be, shall not enterta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thin the meaning of Section 35G of the said Act, for maintaining an appeal before a High Court, I, however, notice that the Hon ble Supreme Court in the case of Raj Kumar Shivhare (supra) while considering the scope of the provisions of Foreign Exchange Management (Adjudication Proceedings and Appeal) Rules, 2000 and Foreign Exchange Management Act, 1999 (hereinafter referred to as FEMA ), in relation to an order passed in connection with an application for dispensation of pre-deposit of penalty and the right to prefer an appeal to the High Court in terms of Section 35 thereof, in paragraph 24 of such judgment was, inter alia, pleased to observe by taking note of the language used in Section 35 of FEMA that the word any in this context would mean all . Having regard to the same, the Hon ble Supreme Court had opined that the said Section confers right of appeal to any person aggrieved and such a right to appeal is a right which has been conferred by the statute. Any decision passed, would be appealable under Section 35 of the FEMA and that the legislature has conferred such right to a person aggrieved from any order or decision of the Appellate Tribunal, though with certain limitati ..... X X X X Extracts X X X X X X X X Extracts X X X X
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